Derived as Trump protector, Kavanaugh defies easy etiquette on the probe

Democrats say Brett Kavanaugh's own words of Supreme Court nominee show that he would protect President Donald Trump from the […] Special Advisor Robert Mueller's criminal investigation. The reality is a bit more complicated.

Senate minority leader Chuck Schumer of New York City said Trump "chose the candidate he thought would best protect him from the Mueller investigation." Senator Richard Blumenthal of Connecticut called on Kavanaugh to recuse himself from any criminal case involving the president. Otherwise his nomination would provide a critical vote for a free prison pass, the senator said.

It is not known whether Kavanaugh would vote on the Supreme Court to isolate Trump from Mueller's investigation in the Russian-meddling election. While the Democrats focus on the candidate's suggestion in a 2009 article that presidents should be protected from criminal prosecution during their tenure, his other statements and articles are not closely related to the Mueller investigation [19659010]. two perspectives – work for independent lawyer Kenneth Starr in the investigation on President Bill Clinton, then work in the White House for President George W. Bush.

This is what Kavanaugh said about some of the crucial questions surrounding the Mueller inquiry:

– Can a sitting president be charged?

At a panel at Georgetown Law School in 1998, Kavanaugh gave an unequivocal answer – no. The moderator asked people to raise their hands if they believed that a president in office could not be legally charged. Kavanaugh's hand rose.

Later that year, he explained his point of view in a review article of the law. Although the question is "debatable," writes Kavanaugh, the Constitution "seems to dictate" that "criminal prosecution can only take place after the president has left office". He said the drafters saw impeachment as a mechanism to deal with presidents who commit serious wrongdoing.

Kavanaugh called on Congress to "clarify" the law and eliminate any doubt about the protection of an incumbent president

"This would only make a tremendous contribution to unraveling the appearance of politics Special advocate investigations, "he writes," that would greatly expedite investigations where the president would otherwise be one of the subjects of the investigation. "

Kavanaugh Squares with the long-standing opinion of the Office of the Legal Counsel of the Department of Justice that a sitting president can not be charged. Noah Feldman, a professor at Harward Law School, columnist for Bloomberg's opinion, explains that "Mueller himself may feel bound by the interpretation of the Department of Justice, although he did not say it publicly.

– President cooperates with special council?

It's there that things start to become obscure.

Kavanaugh came out of his White House experience Bush arguing that not only do presidents should not be indicted "The nation would certainly have been better if President Clinton could focus on Osama bin Laden without being distracted by the case of sexual harassment Paula Jones and his criminal investigations took place," writes He said in the Minnesota Law Review in 2009.

But Kavanaugh said he expressed a political preference, not a legal statement, and called on Congress to pass a law protecting the president during his term. [19659008] "Congress could consider a law exempting a president – during his term of office – from criminal prosecution and investigation, including interrogations by prosecutors or defense lawyers," [1] 9659008] – Is Mueller's appointment constitutional?

In 1998, Kavanaugh suggested that presidents generally have to cooperate with criminal investigations, at least when the investigation does not explicitly target the executive director. Kavanaugh said that he supported court decisions that dismissed requests for executive privilege, including the 1974 Supreme Court decision that forced President Richard Nixon to return oval office records that led to his resignation. The Mueller investigation is not clear. Among other issues, Kavanaugh's court decisions do not address the possibility that a president be called for an interview with a prosecutor or to testify before a grand jury.

It is likely to be a central topic of questioning by Democrats at the time.

In 1988, the Supreme Court upheld the Independent Lawyers Act, which eventually led to the appointment of Starr by a panel of three judges. The solitary dissident was Judge Antonin Scalia, who stated that the fact that judges choose the independent lawyer violated the constitutional separation of powers by encroaching on the authority of the president to enforce the laws.

Kavanaugh made it clear that the majority was wrong. Congress eventually allowed the law on independent lawyers to expire.

"The experience of the independent council resulted in an almost universal consensus that the experience had been a mistake and that Judge Scalia had identified the system of independent advisers in 1988. Historical Practice and a serious threat to individual freedom, "wrote Kavanaugh earlier this year.

But Mueller's situation is different. He was appointed not by judges, but by Acting Attorney General Rod Rosenstein. This distinction could solve the problem of the separation of powers in the spirit of Kavanaugh

– could Trump extinguish Mueller?

In 1998, Kavanaugh proposed a system whereby the president could appoint a special advisor with Senate confirmation. Kavanaugh said the president should be allowed to fire the lawyer for any reason but would have political reasons not to do so.

The president, "if he is wise, will monitor the special attorney remotely or he will face music as President Nixon did," Kavanaugh said at the Georgetown Symposium. "If the president interferes or has the special prosecutor fired, the impeachment procedure would not be far behind."

This is not exactly the same system as Mueller, but it is close, according to Benjamin Wittes, a former member of the Brookings [Traduction] "Mueller looks a lot like the kind of special attorney Kavanaugh has wrote to propose a complete article on the law, "Wittes wrote on Lawfareblog.com

. to be fired. This could test the principles of separation of powers that Kavanaugh has adopted – and potentially show whether the Democrats' fears of protecting the president are justified.